Posted on 08/23/2006 4:40:59 AM PDT by Molly Pitcher
Who is Anna Diggs Taylor and what does she have against national security?
The answer to the first question is: a U.S. district judge in Detroit. The answer to the second is as mysterious as the decision she handed down Thursday.
In her 44-page ruling, Judge Taylor ordered the National Security Agency to stop monitoring international calls to and from this country, aka "domestic spying" in New York Times style.
The judge found the practice not just illegal but unconstitutional. And also un-American in just about every crass, rhetorical way she could. The crux of her opinion reads like an entry in a high-school declamation contest rather than a reasoned piece of jurisprudence.
It's as if Her Honor had mounted her trusty steed and ridden off in all directions - legal, constitutional, philosophical and mainly oratorical.
There may indeed be a legitimate argument against some aspects of the National Security Agency's wiretaps. But this ruling doesn't make it. It's not so much an argument as a series of wild swings:
First off, Her Honor agreed that those challenging the National Security Agency had grounds to sue even if they could not demonstrate any actual material damage to themselves. The mere fear that they might be spied upon was reason enough to let them ask that the whole surveillance program be shut down.
The plaintiffs argued that the very existence of the program is such a threat to their delicate psyches that it should be banned. Because even the possibility that the feds might be listening in - none of the defendants claimed their phone lines were actually tapped - could inhibit their conversations with terrorist suspects abroad. How dare the government do such a thing!
It's an interesting point of view. But it's not mine, at least not since it was reported that these wiretaps may have played a role in the arrest and conviction of at least one would-be terrorist - Iyman Faris, a truck driver who was casing the Brooklyn Bridge with a view to cutting its suspension cables.
It's not the NSA's listening in on international calls that bothers some of us. It's the distinct possibility that soon it may not be able to. Maybe that's because we'd like to think the courts would let the government protect one of our basic American rights - the right not to be blown sky-high.
When the next plot proves successful, and the country is reeling after another 9/11, you can bet the same folks now celebrating this ruling against the administration will be blaming the president for not preventing the massacre.
Judge Taylor found the NSA's surveillance program unconstitutional not only because Her Honor believes it violates the Fourth Amendment, which forbids unreasonable searches, but the First Amendment, too.
Since the existence of such a program might inhibit what people say in the course of international phone conversations.
Again, it's an interesting point of view. Does this mean libel laws are unconstitutional, too, since they tend to inhibit what folks say in print?
(Gosh, who says this decision is all bad?)
What we have here is a triumph of ideology over law. If this ruling holds up on appeal, it'll be another milestone in the radicalization of the federal judiciary. Judge Taylor's pronunciamento may be the most sweeping example of partisan dogma's replacing legal reasoning since the last convention of the American Bar Association. That's when the ABA solemnly resolved to keep the president of the United States from issuing any statement when he signs a bill into law.
Now a judge is doing her best, or rather worst, to keep this administration from detecting terrorist plots. Somehow I was not surprised to read that Anna Diggs Taylor had been appointed to the federal bench by Jimmy Carter.
Happily, the latest plot to blow up American airliners seems to have been foiled by the authorities in London, but Britain's home secretary - John Reid - has deeply offended that country's left-wing press and legal establishment. They say he's exaggerating the threat from terrorism - or at least that's what they were saying before the latest bomb plot was uncovered.
"They just don't get it," Mr. Reid said of his critics, explaining that Britain "probably faced the most sustained period of severe threat since the end of the Second World War."
Maybe that explains what The Hon. Anna Diggs Taylor has against the National Security Agency: She just doesn't get it.
Michael Chertoff, the head of the Homeland Security Department in this country, does. To quote him the other day, this country needs a legal system that allows the government to "prevent things from happening rather than . . . reacting after the fact." For example, a system that allows the National Security Agency to monitor international calls to and from terrorist suspects in real time.
But unfortunately there will always be some judge somewhere who, contrary to Justice Robert Jackson of sainted memory, confuses the Constitution of the United States with a suicide pact.
Hmmmm....
Ah, yes. The age old "You're infringing on my rights to talk to terrorists" defense.
And, what infringement is there, really? There's no censorship issues here. How is the speech being infringed upon? If you're talking to someone you suspect to be a terrorist, maybe you should call the FBI first, for that matter? Communicating with a foreign based enemy during time of war shouldn't be something that you do behind your own country's back, and expect it to be protected.
Warrantless electronic surveillance on US citizens violates the 4th Amendment. Further, such surveillance is specifically forbidden by FISA (50 USC 1801 et seq). Then you toss in the chilling effect it has on lawyers talking to their clients - they can't talk on the phone because the government might be (illegally) listening in. Ding, 1st Amendment.
The US is a government of laws, not men. They should either get Congress (who writes the laws) to get its ass in gear and DO SOMETHING, or they should comply with FISA, or they should stop breaking the damn law. Right now, any prosecution that tried to use any phone taps to get warrants or in a criminal case is looking at real problems because the source of the data is illegally obtained information.
--R.
Right now, any prosecution that tried to use any phone taps to get warrants or in a criminal case is looking at real problems because the source of the data is illegally obtained information.
________________________
Now isn't that precisely the issue?
The NSA is not gathering information for court filings. It is looking for plots to blow up your sweet a**. Once again the courts want to apply their ivory towered principles to all aspects of American life.
Sorry, I do not live my life according to the dictates of SCOTUS and neither, thank God, does the NSA. Nor should it.
Let the President be the Supreme Commander and let the judges stick to their courtrooms. No judge is granted Constitutional authority to declare or carry out warfare.
This is not happening under Iraq's constitution but America's. Big hole in your analogy.
Ah yes, the age old "misstate the argument" counter. If Ms. Taylor's diatribe is so weak in foundation why stoop to this?
I'm guessing that the "Article II plus the Congressional Authorization to Use Military Force against al-Qa'ida" arguement doesn't hold much sway with you. As a historical point, U.S. Presidents have always assumed broad Article II wartime powers (many far more severe than anything Bush has done) and we are at war with al-Qa'ida.
Since we can use deadly force against them, intelligence collection is commonly understood to be an integral part of warmaking process. The target of the intelligence collection is the suspected al-Qa'ida link. Since they don't wear uniforms or identify themselves, it's often hard to prove that link to a legal standard one way or another without ... surveillance!
The position of the United States government is that they'd rather disrupt a terrorist attack than prosecute terrorists. That's no different than wanted to stop Japanese Kamikazi pilots, rather than capture them. Sure, the terrorists may get away, but it's better to foil their plans than to convict them posthumously. Waiting until there's enough evidence for a court of law to grant a FISA warrant is completely reasonable in a peacetime criminal, but suicidal against an armed enemy that we are at war with.
Al-Qa'ida is a military threat, and is largely being dealt with through military channels. Law enforcement certainly has a role to play, but it is secondary.
Anything an American soldier does is judged under the U.S. Constitution, the UCMJ, and whatever Status Of Forces Agreement (SOFA) is in place with the local government. You won't see a U.S. soldier judged by Iraqi courts or required to obey the Iraqi constitution (except as directed by our own side) until we get a SOFA with them, which won't be anytime soon.
Right on target. Such irony. A person digs a whole and proclaims someone else dug it... Then they step in it themselves. Awaiting for someone such as yourself to throw them a rope. Question is, will they use the rope to climb out -- acknowledge their error -- or keep digging.
That wasn't her point, it was the plaintiff's point, and it wasn't misstated.
As to Judge Taylor, I'm sure there is a case to be made that the TSP may infringe on the 4th Amendment, but she lacks the requisite information to prove it because it's classified. A hunch that a law is being broken is insufficent, and the plaintiffs can't show they've been materially harmed or are even targets. You may as well say that you suspect the CIA is following you with spy satellites, and you want them to stop. Since they don't have standing, there's no real case here.
I'm not a lawyer, so I don't know what venue you'd need to use, but until someone shows that they've been harmed, I don't know how you'd prove a theoretical like that. I'm guessing you'd need someone within the program to step forward with a list of abuses, or to otherwise leak said abuses to the press.
I hope there is a very good surveillance net about her.
Uh, originally I was trying to back your point, Jefe. Now that I've reread your posts, I'm guessing that your point doesn't extend much further than "I drink lots of coffee!! Wheee!!!"
It isn't a First Amendment issue at all. The NSA program prevents no one from expressing themselves. If anything, it is a Fourth Amendment issue and also the President's inherent constitutional powers as commander in chief. Every court until this one has said that the President has inherent constitutional power to use warrantless foreign surveillance to gather foreign intelligence.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.